The main legal point established in the judgment is the requirement to consider the memorandum dated 26 April 1995 and prepare general guidelines for height of reconstructed buildings in consultation with MHCC as required under Section 46 of the MRTP Act before granting permission for building construction.

M.S. Sanklecha. J.

1. By this Public Interest Litigation, petitioners are essentially challenging the permission granted on 12 April 2012 by the Municipal Commissioner (herein after referred to as 'erstwhile Commissioner') of Municipal Corporation of Greater Mumbai (herein after referred to as Corporation) to respondent No.6 namely – Vasant Sagar Properties Pvt. Ltd. (herein after referred to as Vasant Sagar) to construct a building on its property situated in 'A' ward bearing plot No.11, C. S. No.1689 of Fort Division at 'A' Road, Off Marine Drive, Mumbai 400 020 (herein after referred to as the said property) with the height of 58 meters. The impugned permission dated 12 April 2012 was granted in terms of Regulation 67(2)(iii)(b) of the Development Control Regulation for Greater Mumbai, 1991 (DCR 1991) which allows reconstruction of a Building with a height in excess of 24 meters (excluding height of stilt on the ground floor) with special permission of the Commissioner.

2. Briefly, the facts leading to this PIL are :-

(i) In 1940, a building consisting of ground and five upper floors constructed thereon was leased by the State Government to one Visonji Rustonsey for a period of 99 years. On 26 February 1987, the said property along with the building thereon was purchased by Vasant Sagar (a part of the Zee group);

(ii) On 19 February 1991, the Central Government issued the Coastal Regulation Zone (herein after referred to as CRZ) Notification 1991. The said property falls within the CRZII. At that time, the said property was governed by Development Control Regulation for Greater Mumbai, 1967 (herein after referred to as DCR 1967). Thereafter, on 20 March 1991, the DCR 1991 was issued;

(iii) On 21 April 1995, Regulation 67 was introduced into DCR 1991. At that time it was felt necessary to impose certain additional restrictions for height of Buildings in 'A' ward. Therefore, on 25 April 1995, the State Government in exercise of its powers under Section 37 (1) of the Maharashtra Regional Town Planning Act 1966 (herein after referred to as MRTP Act) issued directions to the Planning Authority viz. Corporation. The aforesaid communication directed the Corporation that the following restrictions shall have force of additional Regulation to DCR 1991 and the relevant part thereof reads as under:-

“Height of the Building in 'A' ward:

Notwithstanding anything contained in the Development Control Regulations 1991, for Greater Mumbai, in A Ward (exclusive of Back-bay Reclamation Blocks where BMRDA is Special Planning Authority) the height of the buildings after reconstruction shall be limited to the existing height of the buildings of similar age in the surrounding area.”

(iv) On 26 April 1995, the State Government issued a Memorandum in exercise of its power under Section 154(1) of the MRTP Act making the above directives issued on 25 April 1995 under Section 137 of the MRTP Act with regard to height of buildings in 'A' ward applicable with immediate effect. This was issued to ensure efficient administration by providing for uniformity of treatment amongst all buildings being reconstructed in 'A' ward of Mumbai;

(v) A Committee constituted by the State Government under the Chairmanship of Shri D. M. Sukthankar, suggested measures for speedy repairs and reconstruction of old and dilapidated cessed building. In light of the suggestions of the above Committee, the State Government in exercise of its power under Section 37 (2) of the MRTP Act on 25 January 1999 introduced the following sub-clause (iii) into Regulation 67(2) of the DCR 1991. The sub-clause (iii) reads as under:-

(iii)(a) Provisions of Regulation 67 would be applicable only in Grade I and Grade II category of Heritage Building for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) of these Regulations;

(b) In case of redevelopment of cessed buildings from Grade III and precincts, special permission from the Municipal Co